Director of Public Prosecutions v Katsamas

[2016] VCC 1013

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00514

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

NICOLAOS KATSAMAS

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 July 2016
CASE MAY BE CITED AS:	DPP v Katsamas
MEDIUM NEUTRAL CITATION:	[2016] VCC 1013

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr B. Kerlin
For the Accused	Mr S. Robertson

HIS HONOUR: 

1Nicolaos Katsamas, you are to be sentenced on an indictment charging one count of using a carriage service to procure sex with a person you believed  to be a child under 16.  This is an offence pursuant to s.474.26(1) of the Commonwealth Criminal Code.  You have also admitted separate conduct making out that offence and which I am to take into account under s.16BA of the Commonwealth Crimes Act.  The maximum sentence for the offence is 15 years' imprisonment.

2You pleaded guilty before me on 7 July.  When interviewed by police on 16 April 2015, you exercised your right to silence.  A negotiation followed,  at least some focused upon the significance of the s.16BA conduct.  On 1 April 2016, committal went by hand-up brief after which you entered a plea of guilty to the offence on this indictment.  The matter was then listed for plea hearing in this court. 

3You will receive the benefit of your plea of guilty,  which was early, and a high level of cooperation in  the proceeding.  I accept that you are remorseful.

4At your plea hearing which ran on 7 July, the Crown tendered a written Crown opening and filed a form for the purposes of s.16BA which you had signed.  Mr Robertson for you tendered the forensic psychological report of Dr Aaron Cunningham dated 14 October 2015, the report of treating psychologist Sarah Ashton dated 30 June 2016, the letters of your wife Anthea Katsamas and friend and business partner Peter Bogdanis.  They are both dated 20 May 2016.  He also tendered medical materials including the report of your general practitioner Dr John Hatfield dated 17 June 2016,  correspondence to him by your treating cardiologist and negative urine testing results.  Mr Robertson called Mr Bogdanis to give evidence on your behalf.

5The circumstances of your offending are comprehensively described in the tendered Crown opening,  which is Exhibit A.  My own summary may therefore be shorter.  You are a 50-year-old man who was aged 49 at the time of offending.  Arising out of conduct in December 2014 when you made social media contact with a young woman posing as 15 and which led to a meeting with her aimed at sexual liaison.  (this is the s.16BA conduct)  you were targeted on social media by a covert police operative.  The operative told you on a number of occasions that she was 13. 

6Over the period February to April 2015, your messaging quickly became sexual.  The Crown summary contains samples of what you sent to her.  There are 20 such sample messages running between mid-February and mid-April.  They are highly sexual, perhaps without the level of crudity possible in such a situation.  However, they also present,  particularly in the context of the perceived age of your target,  as a sophisticated, exploitative encouragement of her towards sexual activity with you.  There was also evidence of your expressed need for secrecy.  At one point you suggest a mechanism of deletion to achieve that.

7In this setting from late April, you suggest and then on a number of occasions attempt to arrange to meet with the girl.  For example, hotels are identified by you on 8 April.  This does not come to be and you are arrested on 16 April. 

8As to conduct in December 2014 which is the subject of your s.16BA admission, this can be dealt with shortly.  Your target was a 21-year-old woman who for reasons said to be associated with a university project, posed on social media as 15.  Your contact with her had some similar sexual content but it presents as of lesser intensity and ran over the much shorter period of about one week.  This led to a meeting on 10 December at which a male associate threatened to call the police.  You made what appears a somewhat tentative attempt by social media to meet up again in late December.  As suggested earlier, your conduct was reported to police and led to the covert operative making contact with you in February 2015. 

9As also stated, you are a 50-year-old man and you have no criminal history. You described to forensic psychologist Dr Cunningham a supportive and caring upbringing.  You have an older sister.  You attended Caulfield Grammar School to Year 12 and,  after that, you studied and worked in the computer industry.  Thereafter you have been employed consistently in various ways.  That includes work in property development as a courier and again in electronic commercial areas.  You gravitated towards the solar electrical supply industry and for the last three years you have run your business in partnership with your friend, Peter Bogdanis.

10After living the family home, you lived with and then married your wife.  This is now over 20 years ago.  You have three children aged 13, 10 and 7 years.

11The psychological evidence describes a developing preoccupation with sexuality, over time acting out firstly in sexual affairs then pornography and,  leading to this offending, fantasy and virtual sexual liaison upon computer sites.  This seems to have occurred in the context of marriage difficulties, poor self-esteem, family and financial anxieties.  For periods of your life,  much it seems probable in the just stated context,  there has been use of alcohol, cannabis and cocaine.  You are said to have controlled that in recent times.

12You are not diagnosed as having a mental illness nor as having the disorder paedophilia.  Other medical evidence states particularly the heart condition of arrhythmia,  treated by medication and monitored by your general practitioner.

13It seems as a result of seeing forensic psychologist Dr Cunningham, you were referred to and commenced treatment with psychologist Ms Ashton.  As at 10 June, there had been 17 counselling sessions.  She reports significant gains addressing risk factors that led to your offending.  She also states the need for further treatment to manage risk of reoffending in, I quote her, "a sustainable manner".  Her report states finally, "While Mr Katsamas has engaged in offence-related treatment to date,  I also believe he would benefit from programs run by specialised offender and assessment treatment services (SOATS) for further offence-related treatment".

14Also arising out of your offending, child protection authorities have investigated your family and you have had the disappointment and humiliation of restricted contact with your children.

15The seriousness of your offending is reflected by the maximum sentence and by my earlier description of it.  There is a strong need to protect our community's young from exploitation as you intended.  In such circumstances, the sentencing considerations of deterrence, particularly general deterrence, denunciation, your moral culpability and the need for proportionate  punishment are relevant.  As stated, general deterrence is a particularly important sentencing purpose.  Specific deterrence is made less significant by such matters as your lack of criminal record and steps you have taken towards rehabilitation.    However, on my assessment of the psychological evidence, I do not see it as eradicated.  The December 2014 conduct you have admitted and which I am to take into account under s.16BA states that the offence on indictment was not isolated conduct.  It also has some relevance to specific deterrence of you.  However, I also recognise the need for caution.  Primarily you are to be sentenced for the offending of February to April 2015.  I was referred to and have considered the New South Wales Court of Appeal case, R v Dennison. 

16The only appropriate sentence to meet these considerations and purposes is one which entails a period of immediate custody.  There are moderating factors which should go to reduce the length of such a sentence.  They include the following.

·    (1) Your plea of guilty and cooperation.  I see you as remorseful. 

·    (2) You have no criminal record and the tendered character evidence material speaks well of you.  Your prospects for rehabilitation must be seen as genuine. 

·    (3) Your personal circumstances,  which include your health problems;  and also the impact of this offending upon your family and contact and relationship with your children. 

·    (4) The matter of hardship to others,  primarily your family,  was raised by Mr Robertson.  The evidence of Mr Bogdanis was in large part relevant to that.  I do not find the circumstances of such hardship to meet the established test of exception.  The consequences for your family, business and Mr Bogdanis cannot be treated as a mitigating factor in the usual or direct sense.  I do find that the realisation of what damage your offending has and will cause others,  particularly your family,  will make imprisonment more difficult for you.  I accept that you feel shame and humiliation.  What you have done in these proceedings must be very painful for your wife.  She remains supportive of you.

17Before I sentence, I might ask this question in relation to child protection; it might be a matter more for you.  In relation to child protection intervention, my understanding was that there is no present formal involvement of child protection but at the time there was restricted access in the sense of being supervised.

18MR ROBERTSON:  That was my understanding.

19HIS HONOUR:  Or in the company of others over some time, and I think I was told that that continued even after the formal involvement of the authorities.

20MR ROBERTSON:  Yes.

21HIS HONOUR:  Yes, well, I have made my comments about that.

22Stand up please.  Now, Mr Kerlin, what I propose is a two and a half years sentence of imprisonment but release upon a recognisance to be of good behaviour after six months of that sentence.

23MR KERLIN:  Yes, Your Honour.

24HIS HONOUR:   I propose that the recognisance be in the sum of $5,000, that the  duration be two years.  The usual conditions to apply but also the condition that Mr Katsamas comply with relevant sex offenders programs as directed by the relevant people.

25MR KERLIN:  Yes.

26HIS HONOUR:  I need no more than state it in that way?

27MR KERLIN:  Yes, Your Honour, I mean I've got a draft order here.  For that to take place, it's administered by community corrections and there are standard ‑ ‑ ‑

28HIS HONOUR:  In Victoria or Commonwealth?

29MR KERLIN:  In Victoria, Your Honour.

30HIS HONOUR:  I see.

31MR KERLIN:  It's the arrangement we have with that agency and there are ‑ ‑ ‑

32HIS HONOUR:  So that recommendation by the psychologist would be taken up?

33MR KERLIN:  Yes.

34HIS HONOUR:  Or would be considered by community corrections.

35MR KERLIN:  Yes, Your Honour.  The standard conditions that we've agreed with community corrections that allow the order to be enforceable, and they're very similar to the standard conditions of a community corrections order, Your Honour.

36HIS HONOUR:  Yes.

37MR KERLIN:  That the offender be of good behaviour for a certain period, be under supervision of the Deputy Commissioner, attend for assessment if assessed as suitable for treatment for the sex offender program.  There's also - we have to indicate, Your Honour, that the offender report to a particular community corrections centre upon release so that would be obviously whichever one is closest to his residence.

38HIS HONOUR:  I can't remember where the accused man lived.

39MR ROBERTSON:  Malvern, Your Honour.

40HIS HONOUR:  Malvern, so it would be the Malvern - there's a police station at Malvern.

41MR KERLIN:  Yes, I understand that to be the case.  If I could just ‑ ‑ ‑

42HIS HONOUR:  It might be Prahran.

43MR KERLIN:  If I could get some instructions?

44HIS HONOUR:  Yes, all right.  It's just going to be recorded?  Sit down, I'm sorry.  It's just going to be recorded in the recognisance or do I need to say it?

45MR KERLIN:  Unfortunately that needs to be recorded in the recognisance, Your Honour.

46HIS HONOUR:  Yes, all right.  Can you do that then now?

47MR KERLIN:  Yes, yes, I can, yes.

48HIS HONOUR:  I'll give you - you can sit down whilst that happens.

49(At this stage the court proceeded with another matter.)

50MR KERLIN:  I apologise for the delay, Your Honour.

51HIS HONOUR:  That's all right.

52MR KERLIN:  I'm instructed Moorabbin's the closest community corrections so we've included that.  I've also ‑ ‑ ‑ 

53HIS HONOUR:  I see.  I was thinking of police stations, I'm sorry.

54MR KERLIN:  Yes, yes, Your Honour.  There's the Moorabbin Justice Centre there.  I've also included - it's usually by 4 pm on a particular day but given we won't know the day that Mr Katsamas is released, I've said within 48 hours of release.

55HIS HONOUR:  Of release.  Look, community corrections are well-attuned to the idea of finding out the actual day of release and they make contact with the people.

56MR KERLIN:  Yes, Your Honour.  That's right, yes, they'll be notified, Your Honour.  So I have that order, Your Honour, for Your Honour to peruse.

57HIS HONOUR:  Thank you, thank you.  Has Mr Robertson had a look at it?

58MR KERLIN:  Yes, I apologise.  I'll hand the 16BA orders back for Your Honour to sign as well.

59HIS HONOUR:  Yes, thank you.  I'll do that now, I think.

60MR KERLIN:  The only other matter, Your Honour, is the sex offender registration.

61HIS HONOUR:  Yes.  What's the period of time?

62MR KERLIN:  Eight years, Your Honour.

63HIS HONOUR:  That document can be printed out now.  Did you say it was eight years?

64MR KERLIN:  Eight years, Your Honour.

65HIS HONOUR:  I think this form was tendered by Ms Lai so it will need to be marked.

66MR KERLIN:  Yes, Your Honour.

67Mr Katsamas will need to sign that recognisance order, Your Honour.

68HIS HONOUR:  Yes.  Is that coming up is it, the recognisance?  Is that coming up to me, the recognisance?

69MR KERLIN:  Yes, Your Honour.  Sorry, Your Honour, my friend still hasn't - are you satisfied?

70MR ROBERTSON:  Sorry.

71HIS HONOUR:  Thank you.  Right, stand up and I will formally sentence you.

72You are sentenced to imprisonment for two and a half years.  However, you are to be released on a recognisance to be of good behaviour after six months' service of that sentence.  The recognisance is to be in the sum of $5,000 which you forfeit only if you do not meet the bond to be of good behaviour.

73The duration of the recognisance is that you be of good behaviour for a period of two years; that you are to be under supervision of community correctional services, that you must attend for assessment and,  if assessed as suitable, treatment for sex offender programs to reduce reoffending as directed by community correctional services; that you are to report to the Moorabbin Community Corrections Centre - and the address is noted here - by 4 pm or within 48 hours of release.  Community corrections will be in contact with you about that.

74That you are to report to and receive visits from the community corrections officer; that you are to notify community corrections of any change of address or employment within two days; that you are not to leave Victoria without the permission of community corrections; that you are to obey all lawful instructions or directions of community corrections.

75You understand that and you agree to those terms of release?

76Yes.  I will sign my part.  It's 15 July.  And I'll have the document brought down to you for you to sign.  Perhaps before - there's also another document that you're requested to sign. 

77It is mandatory that I cause you to be registered under legislation called the Sex Offenders Registration Act.  That will require certain obligations of you particularly when you are released from prison, reporting provisions and the like.  You are - I am now going to serve on you as well as the recognisance for signature a document indicating what your obligations are and there is also a document called an acknowledgement of service document which you are asked to sign but you are not obliged to do so if you (indistinct).  So we will do the recognisance first and then we will do the registration under the Sex Offenders Registration second.

78Do the recognisance first so he knows he is signing that, and after doing that then he should sign the other document.

79Yes, if your instructors can wait, Mr - and you also, Mr Kerlin.  Mr Robertson, if your instructor can wait after I leave the Bench, the relevant documents will be given to him.

80MR ROBERTSON:  Thank you, Your Honour.

81HIS HONOUR:  Yes, I've signed it.  Just give him that document, don't - the recognisance can go to his solicitor.

82ASSOCIATE:  You haven't signed the registration.

83HIS HONOUR:  I thought I had.

84I need to say one other thing, that if you had not have pleaded guilty, I would have imposed a sentence of three and a half years of which you would have served two years before being eligible for parole or other release.  Are there other matters, Mr Kerlin?

85MR KERLIN:  No other matters, Your Honour.

86HIS HONOUR:  In a moment, Mr Katsamas can be taken into custody.  If his wife - if he wishes to speak to his wife for a short time he may do so before he's taken away but it must be relatively short.  Am I mistaking the lady in court, I'm sorry?  You may speak to your husband briefly if you wish.

87All right, Mr Katsamas must be taken into custody now, thank you.

88All right.  Thank you for your assistance, Mr Kerlin. 

89MR KERLIN:  Thank you, Your Honour.

90HIS HONOUR:  Thank you for your assistance, Mr Robertson.  I'll leave the Bench now.  I don't think I'll be back until quarter to 12, actually.

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